2008 PTD 851

Versus Mrs. Sabiha Mujahid , Nemo

Citation2008 PTD 851

CourtIncome Tax Appellate Tribunal

ORDER

1. Through this appeal, the appellant has objected to the impugned order of the learned C.LT. (A), dated 26-7-2005 for the assessment year 1994-95 deleting the penalty imposed under section 108(a) of the repealed Ordinance, 1979.

2. None has appeared on behalf of the assessee/respondent. We have, however, found that the learned C.I.T. (A) has deleted the penalty, as notice under section 116 of the repealed Ordinance, 1979 was issued on the basis of cognizance of the assessment order under section 62 passed on September, 11, 1995, which is after lapse of eight years, which is against the mandatory requirement of law i.e. section 116 of the Ordinance, 1979, which provides that " Where a notice of hearing is given on or after the first day of July, 1990, no order of penalty shall be passed after the expiration of two years from the end of the financial year in which the said notice was served ". Notice under section 116 of the late Ordinance in this case was issued firstly on August, 8, 1994, but the penalty order was not passed within the period of two years as specified in the above referred section, but has been passed on 15-6-2005. After issuing second notice on June 6, 2003 on the basis of cognizance in the assessment order under' section 62 of the repealed Ordinance, based on 14-9-2005 i.e. after about eight years. In this regard, the learned C.I.T. (A) has obtained strength from the decision of this Tribunal reported as 2004 PTD (Trib.) 1218. The learned C.I.T. (A) has also referred two cases of Indian Jurisdiction reported as 1994 PTD 199 and (1997) 35 Tax 39 (H.C. India).

3. After perusal of the impugned order of the learned C.I.T. (A) and the order passed by the Taxation Officer under section 108(a), we are of the view that the penalty imposed by the Taxation Officer after lapse of a considerable time, which is also barred by time, due to the mandatory provisions of law has rightly been deleted. No interference in this respect is, therefore, required.

4. The appeal filed by the department is dismissed.

5. C.M.A./21/Tax(Trib.) Appeal dismissed.